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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Brazil: New Rules Update the Criteria to Define Brain Death

(Dec. 15, 2017) On December 12, 2017, the Brazilian Federal Council of Medicine (Conselho Federal de Medicina, CFM) updated the criteria for the definition of brain death, which can now be diagnosed by more specialists in addition to neurologists. The new criteria established in Resolution CFM No. 2,173/17 (not yet available online) meets the requirements of Law No. 9,434, which provides for the removal of organs, tissues, and parts of the human body for transplant or treatment and regulates organ transplants in Brazil. (Law No. 9,434 of February 4, 1997, PLANALTO; Decree No. 9,175 of October 18, 2017, PLANALTO.)

According to article 3 of Law 9,434, the removal of tissues, organs, or parts of the human body intended for transplant or treatment should be preceded by a diagnosis of brain death, as evidenced by two nonparticipating physicians of the removal and transplant teams, through the use of clinical and technological criteria defined by CFM. (Id.) In addition to the clinical examination, which should be performed by two different physicians, with a minimum interval of one hour between the first and the second examinations, the patient should undergo an apnea test and other, complementary tests. (CFM Atualiza Resolução com Critérios de Diagnóstico de Morte Encefálica [CFM Updates Resolution with Diagnostic Criteria for Brain Death], CFM (Dec. 12, 2107).)

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United Kingdom: New Bill Strengthens Animal Protection, Recognizes Animals as Sentient Beings

(Dec. 14, 2017) A draft bill introduced before the British Parliament on December 12, 2017, aims to strengthen animal protection and contribute to raising welfare standards for animals across the United Kingdom. The Animal Welfare (Sentencing and Recognition of Sentience) Draft Bill will increase ten-fold the maximum sentence the courts can impose under section 32 of the Animal Welfare Act 2006, from six months to five years. The courts will retain the power to impose an unlimited fine and ban convicted offenders from owning animals. (Animal Welfare Act 2006, c. 45, LEGISLATION.GOV.UK; Animal Welfare (Sentencing and Recognition of Sentience) Draft Bill, 2017-18, Cm 9554, cl. 1(1) (Draft Bill), GOV.UK.)

The Draft Bill also places a duty on the government to formulate and implement policy and laws with regard to “the welfare needs of animals as sentient beings.” (Draft Bill.) In discharging this duty, the government must continue to have regard to the public interest. The government has stated: “there was never any question that our policies on animal welfare are driven by the fact that animals are sentient beings … .  I am keen to reinforce this in legislation as we leave the EU.” (Id. at 4.)

Background

The change in law comes as a result of both public outrage and judicial frustration at the penalties the courts have at their disposal to impose on individuals who have severely abused animals.  (Press Release, Department for Environment, Food & Rural Affairs, Environment Secretary Publishes Bill to Strengthen Animal Welfare (Dec. 12, 2017).) An animal charity stated that “(t)he current maximum cruelty sentence of six months in England and Wales is neither a punishment nor a deterrent.” (Id.) The government notes that around 1,150 individuals are convicted of animal cruelty each year, but only a small fraction of these involve extreme animal cruelty. The new change in the law will enable the courts to deal with these offenders more effectively and “bring maximum sentences for animal cruelty in England into line with other countries such as Australia, Canada and the Republic of Ireland.” (Id.)

This is not the only animal welfare bill before Parliament – the Service Animal (Offences) Bill 2017-19 was introduced on December 5, 2017. This bill will make it an offense to attack service animals, which include police dogs and horses, and makes specified offenses aggravated offenses if they involve these animals. (632 Parl. Deb. HC (5th Ser.) 2017 632, Service Animal (Offences) Bill 2017-19, Bill 138, Parliament website.)

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Sweden: Mandatory Kindergarten Approved

(Dec. 14, 2017) On November 15, 2017, the Swedish Parliament voted approval of a law to make förskoleklass (similar to kindergarten) mandatory.  The law is set to enter into force in January 2018, with the first mandatory förskoleklass to start in August of 2018.  (Skolstart vid sex års ålder [School Starts at Age Six], Utbildningsutskottets betänkande [Education Committee Report] 2017/18:UbU7, RIKSDAGEN, Nov. 15, 2017; Utbildningsutskottets betänkande 2017/18:UbU7: Skolstart vid sex års ålder [Education Committee Report 2017/18:UbU7: School Starts at Age Six] (Report), RIKSDAGEN.)

Förskoleklass 

The förskoleklass was added in 1998 as a nonmandatory part of the Swedish school system, meant to ease the gap between daycare/preschool and school.  (Report, supra, at 6.)  Students start förskoleklass in the fall of the year they turn six years old (January 1-December 31).  Currently, it is estimated that almost 98% of Swedish children attend förskoleklass, while 1.7% of six-year-old children do not attend any type of school.

The purpose of making förskoleklass attendance mandatory, according to the committee proposal, was that it would ensure that the estimated 2,000 children who do not attend förskoleklass would attend in the future and thus become better prepared for the first year of primary school.  It would also ensure that children who already attend förskoleklass do so full-time – that is, all five days of the school week.  (Skolstart vid sex års ålder, supra, at 8, 10-11.)  The Education Committee also considered the circumstance that from an international perspective, students start mandatory schooling relatively late in Sweden.  (Id. at 8.)  Under the new rules, children may start the kindergarten class early or delay it if there are special reasons for waiting.  (Report, supra, add. 2, 7 kap. 11 §, 7 kap. 10 § 2st Skollagen [Education Act], as proposed.)

Currently, compulsory school starts in first grade, the year a child turns seven.  (7 kap. 4 och 10 §§ Skollagen [Education Act] (Svensk författningssamling [SFS] 2010:800), NOTISUM.)

There have been no material changes made to the form of education that will be afforded students who attend föreskoleklass, and “play and creativity” will continue to be an integral part of the förskoleklass experience.  There will be no new national curriculum or educational requirements set for this age group, but teachers are expected to provide the students an education suitable for the children’s development.  (Report, supra, at 8.)  Consequently, there will be no right to special help to meet the requirements for each grade level, a right now given only at grades 1 and above (ages that have knowledge requirements).  (3 kap. 5a § and 8 § Skollagen).

The förskoleklass will meet under the same conditions as grade 1 – that is, it will not meet for more than 190 days a year and six hours a day.  (Report, supra, add. 2, 7 kap. 17 § 2 st Skollagen, as proposed), and lunch and transportation must be provided free of charge to the students.  (Id. at 9.)

As with mandatory education today, legal guardians will be responsible for ensuring that the children in their charge attend förskoleklass.  (Report, add. 2 , 7 kap. 23 Skollagen, as proposed.) Failure to do so is sanctioned with monetary fines.  (Id.)

Criticism

 The proposed legislation has been criticized by the political opposition for not going far enough, because it does not create a new curriculum or educational goals.  According to the opposition,  there are discrepancies in education across the country because of the lack of uniform standards, which they argue is unacceptable when education is compulsory.  They have instead proposed that students start grade 1 at the age of six and primary school be extended by one additional year.  (Press Release, Camilla Waltersson Grönvall et al., Alliansen: Fel att behålla förskoleklass [Wrong to Keep Förskoleklass] (Oct. 4, 2017), MODERATERNA.)

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United Kingdom: Proposals for Greater Online Protection for Children

(Dec. 14, 2017) The Government of the United Kingdom has recently proposed an amendment to the Data Protection Bill to provide for greater protection for the privacy of children who engage in online activities. The Data Protection Bill is currently progressing through Parliament and will implement the European Union’s Data Protection Directive, which will apply in the UK from May 2018. If enacted, the new proposals will form part of the government’s Internet Safety Strategy, and the Information Commissioner will be required to produce a statutory code of practice. The code of practice will set out the standards that website and app designers must follow to integrate “tailored protections” to provide privacy for children under 16 years of age. (Data Protection Bill 2017, HL Bill 74; Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation) art. 4(1), 2016 O.J. (L 119) 1.)

The aim of this code is to prevent children’s online activities from being monitored; there has been a push for this from a cross-party campaign after it was highlighted how companies, particularly social media companies, collected and used children’s personal information, including address, phone number, photographs, and location data. (Jessica Elgot, Tough Code of Practice for Websites Will Aim to Protect Children Online, GUARDIAN (London)  (Dec. 8, 2017).)

The amendment would provide that websites and apps must be clear in what personal data is being collected, how it is used, and how both children and parents may control the data. Failing to follow the code of practice could be considered by the Information Commissioner when deciding whether or not to bring enforcement action against a website for failing to comply with the Data Protection Bill and could also be considered a factor when determining the level of fine to be imposed(Children to Be Given Extra Protection Online, Department for Digital, Culture, Media & Sport website (Dec. 11, 2017); HM Government, Internet Safety Strategy – Green Paper, GOV.UK (Oct. 2017).) If these provisions of the Bill are enacted, a draft code of practice will be presented to Parliament within 18 months after the Bill enters into force.  (Elgot, supra.)

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Japan: Supreme Court Rules Obligatory Contracts with Public Broadcasting Corporation for Reception Equipment Are Constitutional

(Dec. 13, 2017) In a decision issued on December 6, 2017, Japan’s Supreme Court ruled that a provision obligating persons who have installed such broadcast-reception equipment as televisions to conclude a contract with Japan’s public broadcasting corporation is constitutional.  (Sup. Ct. Dec. 6, 2017, 2014 (o) 1130, Courts in Japan website (in Japanese) (click on PDF icon near the bottom of the page).)

Background

Nippon Hoso Kyokai (NHK, Japan Broadcasting Corporation), Japan’s only public broadcaster, operates four television channels and three radio channels.  (Overview of Operations, NHK ONLINE (last visited Dec. 6, 2017); NHK Corporate Information, NHK ONLINE (last visited Dec. 6, 2017).)  The Corporation states it “is funded through TV receiving fees, which are paid equally by every household and business with a television set.  The fees are the main source of income for NHK, making up nearly 100% of the total.”  (Receiving Fee System, NHK ONLINE (last visited Dec. 6, 2017).)  NHK is prohibited from running its business for profit and airing commercials in its programs.  (Broadcasting Act, Act No. 132 of 1950, as amended by Act No. 96 of 2014, arts. 9 ¶ 3 & 46 ¶ 1, Japanese Law Translation website.)

The number of people refusing to pay NHK reception fees surged around 2004 following several scandals involving NHK employees.  In 2006, the percentage of people who paid NHK fees dropped to 68%, the lowest point since the corporation was founded.  Subsequently, NHK started to collect fees rigorously, resulting in the rate of those paying fees climbing to 79% in 2016.  (NHK Reception Fee, Contacts with Consumer Centers Increased 4 Times in Last 10 Years, NHK Collected 5 Years of Unpaid Fees, MAINICHI (Dec. 4, 2017) (in Japanese).)

NHK has filed approximately 300 lawsuits against people who did not pay broadcasting fees – even those who insisted that they did not agree to have contracts with NHK and did not watch or listen to NHK programs. (NHK Reception Fee Unconstitutional? Constitutional? Issues for Supreme Court, TELENEWS24 (Oct. 25, 2017) (in Japanese).)

The Case

NHK based its legal claims on article 64 of the Broadcasting Act, which requires persons installing reception equipment capable of receiving NHK broadcasts to conclude a contract with NHK for the reception of those broadcasts (Broadcasting Act, art. 64), and provided four alternative reasons for establishment of the contract and the fees.  This article of the Broadcasting Act does not explain details of those possible reasons.  (Sup. Ct. Dec. 6, 2017.)

The defendants in the case who had refused to pay the NHK fees argued that article 64 of the Broadcasting Act does not have the effect of forcing the conclusion of the fee agreement and, even if it did, the provision would be unconstitutional because it violates their rights under the Constitution guaranteeing the freedom to conclude contracts, the right to know, and the right to property. (Id.; Constitution of Japan, 1946, arts. 13, 21, & 29, Prime Minister of Japan website.)

Among other things, the Supreme Court decided that persons who have installed reception equipment but refused to have a contract with NHK must conclude such a contract when NHK obtains a court judgement to that effect. The Supreme Court also stated that, because electromagnetic waves must be allocated equally and efficiently, government regulation is required, and the government has the discretion to establish a system to regulate broadcasts.  The Court ruled that it is within the discretion of the government to obligate people who install reception equipment to have contracts with the NHK, because of the public role NHK plays in contributing to the peoples’ right to know.  Accordingly, the Court did not find article 64 of the Broadcasting Act unconstitutional.  (Sup. Ct. Dec. 6, 2017.)

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